Chapter 2 - Parolees
USCIS is the DHS component that has authority to grant employment authorization and issue employment authorization documents (EADs) to aliens who are currently in the United States.
This chapter addresses discretionary employment authorization for aliens who have been paroled into the United States under Section 212(d)(5) of the Immigration and Nationality Act (INA), based on an urgent humanitarian reason or for a significant public benefit.
The purpose of this chapter is to tailor certain existing guidance for officers on how to exercise discretion in adjudications involving parole-based employment authorization. USCIS has determined that it is necessary to issue this guidance at this time because there is a national emergency at the U.S. southern border where aliens are entering the U.S. illegally. USCIS also has determined that officers may need more guidance on the use of discretion in employment authorization adjudications.
This policy guidance provides officers with helpful tools based on existing policies to aid in their discretionary adjudications and to help ensure that requests for employment authorization based on parole are properly adjudicated.
The Secretary of Homeland Security has discretionary authority to parole into the United States temporarily “under conditions as he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit any individual applying for admission to the United States,” regardless of whether the alien is inadmissible to, or removable from, the United States. Congress did not define the phrase “urgent humanitarian reasons or significant public benefit,” entrusting the interpretation and application of these standards to the Secretary.
Any alien may request parole but no alien has a right to be granted parole. Parole decisions are discretionary determinations that must be made on a case-by-case basis consistent with the INA. To exercise its parole authority, USCIS must determine that parole into the United States is justified by urgent humanitarian reasons or significant public benefit. Even when one of those standards is met, DHS may still deny parole as a matter of discretion.
When deciding whether to exercise its parole authority, USCIS must consider all relevant information, including any criminal history or other serious adverse factors that would weigh against a favorable exercise of discretion. The denial of a request for parole is not subject to judicial review. The Secretary also has the authority to impose any terms and conditions on the grant of parole, including requiring reasonable assurances that the parolee will appear at all the hearings and will depart from the United States when required to do so.
In general, if USCIS favorably exercises its discretion to authorize parole, either USCIS or the U.S. Department of State will issue a travel document to enable the applicant to travel to a U.S. port of entry and request parole from U.S. Customs and Border Protection (CBP). CBP officers make the ultimate determination, upon the alien’s arrival at a U.S. port of entry, whether to parole him or her into the United States and for what length of time. Once an alien is paroled into the United States, the parole allows him or her to stay temporarily in the United States.
Parole is not an admission to the United States. Parole also does not provide the alien with any lawful status. When an alien is allowed to be paroled into the United States, he or she is still deemed to be an applicant for admission. Parole terminates automatically upon the expiration of the authorized parole period or upon the alien’s departure from the United States. Parole also may be terminated on written notice when DHS determines the purpose for which the parole was authorized has been accomplished or when a DHS official determines that neither humanitarian reasons nor public benefit warrants the continued presence of the alien in the United States. When parole is terminated, the alien is “restored to the status that he or she had at the time of parole.”
Employment authorization for parolees is discretionary; therefore parolees must apply for and be granted employment authorization before they may work in the United States. An alien who is paroled into the United States is not employment-authorized incident to status.
Exercise of Discretion
USCIS, U.S. Immigration and Customs Enforcement (ICE), and CBP officers can decide, as a matter of discretion, whether to grant an alien parole for urgent humanitarian reasons or based on a significant public benefit. The fact that USCIS, ICE, or CBP grants parole does not mean an alien is automatically entitled to discretionary employment authorization. The grant of parole is a separate determination from the grant of employment authorization, even though both adjudications require an officer to exercise discretion.
USCIS determines whether to grant discretionary employment authorization on a case-by-case basis, taking into account all factors and considering the totality of the circumstances. In deciding if an alien should receive an EAD, USCIS officers should consider the underlying factors and circumstances which served as the bases for the alien’s initial parole (or re-parole). However, these factors are not dispositive in determining if a favorable exercise of discretion is warranted for employment authorization purposes.
The exercise of discretion does not mean the decision can be arbitrary, inconsistent, or dependent upon intangible or imagined circumstances. At the same time, there is no calculation that lends itself to a certain conclusion. An officer should determine whether to approve an application for employment authorization based on parole as a matter of discretion by:
Considering any positive or negative factors relevant to the applicant’s case,
Evaluating the case-specific considerations for each factor,
Avoiding the use of numbers, points, or any other analytical tool that suggests quantifying the exercise of favorable or unfavorable discretion, and
Assessing whether on balance a favorable exercise of discretion is warranted in light of the totality of the evidence including the positive and negative factors.
In deciding whether a parolee should be granted employment authorization, USCIS makes a case-by-case determination considering all relevant information. The ultimate decision to grant discretionary work authorization for a parolee depends on whether, based on the facts and circumstances of each individual case, USCIS finds that the positive factors outweigh any negative factors that may be present, and that a favorable exercise of discretion is warranted. The denial of employment authorization is not subject to judicial review.
Officers should consider and weigh positive and negative factors when conducting the discretionary analysis for employment authorization for parolees. A nonexclusive, nonbinding list of factors are reflected in the table below which officers may use at their discretion.
The officer should examine the totality of the evidence, weighing the positive and negative factors in each case, and determine whether a favorable exercise of discretion is warranted to grant work authorization. Examples of serious negative factors based on the table above include, but are not limited to an alien who has:
A final order of removal or who is subject to reinstatement of such an order;
Been convicted of an aggravated felony;
Been convicted of any felony;
Been charged with or convicted for any offense involving domestic violence or assault;
Been charged with or convicted for any criminal offense involving child abuse, neglect, or sexual assault;
Been charged with, arrested, and or convicted for any criminal offense involving illegal drugs or controlled substances;
Been charged with or convicted of driving under the influence or driving while intoxicated; or
Lied or made a material misrepresentation to any immigration or consular officer or employee while such officer or employee is performing his or her official duties under the law.
Officers may consider serious negative factors as strong unfavorable factors that weigh heavily against granting employment authorization as a matter of discretion. However, the negative factors noted above should not be interpreted as an instruction to automatically deny any application for discretionary employment authorization. The ultimate decision to grant or deny an application for employment authorization for a parolee rests on whether, based on the totality of the facts of the individual case, the officer finds that the positive factors outweigh any negative factors that may be present.
Discretionary decisions that involve complex or unusual facts and whether the outcome is favorable or unfavorable to the applicant, may warrant supervisory review. Further, officers may consult with the Office of Chief Counsel through appropriate supervisory channels.
USCIS has discretion to establish a specific validity period for discretionary employment authorization. For purposes of discretionary employment authorization for parolees, officers should only grant employment authorization for the period that is the length of the parole authorization, which usually is not more than a year. Aliens who are re-paroled may file a new employment authorization application under the procedures set forth in the instructions to the Application for Employment Authorization (Form I-765).
[^ 1] See Presidential Proclamation 9844 of February 15, 2019, Declaring a National Emergency Concerning the Southern Border of the United States, 84 FR 4949 (PDF) (Feb. 20, 2019); Section 11 of Executive Order 13767 of January 25, 2017, Border Security and Immigration Enforcement Improvements, 82 FR 8793 (PDF) (Jan. 30, 2017).
[^ 6] See INA 101(a)(13)(B) and INA 212(d)(5)(A). See 8 CFR 1.2 (“An arriving alien remains an arriving alien even if paroled pursuant to section 212(d)(5) of the Act, and even after any such parole is terminated or revoked.”).
[^ 11] One exception is international entrepreneur parolees pursuant to 8 CFR 274a.12(b)(37) who are employment authorized incident to their parole by a specific employer. This PM chapter does not address this category.
[^ 12] CBP, ICE, and USCIS all have authority to grant parole. See DHS Delegation Nos. 7010.3, 7030.2, 0150.1, and the September 2008 Memorandum of Agreement, Coordinating the Concurrent Exercise of USCIS, U.S. Immigration and Customs Enforcement (ICE), and Customs and Border Protection (CBP) of the Secretary’s Parole Authority under INA 212(d)(5)(A) With Respect to Certain Aliens Located Outside the United States.
[^ 13] Aliens are granted a fixed parole period that cannot be extended. If the alien's circumstances still meet the requirements for parole at the end of that period, the alien may be authorized a new parole period by the appropriate DHS component. This action is called “re-parole.”
No appendices available at this time.
U.S. Citizenship and Immigration Services (USCIS) is providing policy guidance in the USCIS Policy Manual regarding applications for discretionary employment authorization based on 8 CFR 274a.12(c)(9) (pending application for adjustment of status under INA 245) or 8 CFR 274a.12(c)(14) (grant of deferred action). USCIS is also providing guidance outlining the categories of aliens eligible for discretionary employment authorization.
This technical update replaces all instances of the term “foreign national” with “alien” throughout the Policy Manual as used to refer to a person who meets the definition provided in INA 101(a)(3) [“any person not a citizen or national of the United States”].
U.S. Citizenship and Immigration Services (USCIS) is updating its existing policies on the exercise of discretion to address the use of discretion when assessing if certain foreign nationals who are paroled into the United States should be employment authorized.